In re Aldrich's Estate

• Decision Date: 12 September 1941
• Citation: 3 So.2d 856,148 Fla. 121
• Parties: In re ALDRICH'S ESTATE. WITHINGTON et al. v. ACTON et al.
• Court: Florida Supreme Court

3 So.2d 856

148 Fla. 121

In re ALDRICH'S ESTATE.

WITHINGTON et al. v. ACTON et al.

Florida Supreme Court

September 12, 1941

Rehearing Denied Oct. 15, 1941.

En Banc.

Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.

Doyle Campbell and Edwin Thomas, both of Tampa, for appellants.

Ray C Brown and C. N. Smith, both of Tampa, for appellee.

PER CURIAM.

In this case there is ample competent evidence to sustain the order of the County Judge that the will herein be probate against an attack on grounds that the testator did not have testamentary capacity and was unduly influenced; and such order was affirmed on appeal by the Circuit Court. There was no harmful error of law or procedure in either the Probate Court or the Circuit Court on appeal. The order of the Circuit Court affirming the order of probate, will be affirmed by the Supreme Court on appeal, even though there was substantial conflicting evidence and even though the burden of proof on the issue of undue influence was technically upon the proponents of the will, a confidential fiduciary relation of patient and his physician and business manager existing between the testator and a leading beneficiary of the will; where as in this case, the legal effect of the evidence, as to the testator's mental capacity to make a will and as to the circumstances attending the execution of the will, was not in favor of the contestants; and where, as here, it cannot be said with confidence that the will is not that of a competent testator. The beneficiaries of the will served the physical necessities of the testator during a long illness before and after the will was executed and the testator had only collateral surviving relatives who had not rendered him service or attention. See Marston v. Churchill, 137 Fla. 154, 187 So. 762; In re Estate of Starr (Starr v Wilson), 125 Fla. 536, 170 So. 620; Ziegler v. Brown, 112 Fla. 421, 150 So. 608; Hamilton v. Morgan, 93 Fla. 311, 112 So. 80; Sweetser v. Ladd, 52 Fla. 663, 41 So. 705; Henson v. Denniston, 124 Fla. 843, 169 So. 624; Myers v. Pleasant, 118 Fla. 715, 160 So. 124; Estate of Donnelly, 137 Fla. 459, 188 So. 108; Wartmann v. Burleson, 139 Fla. 458, 190 So. 789; Rich v. Hallman, 106 Fla. 348, 143 So. 292; Adams v. Saunders et al., 139 Fla. 730, 191 So. 312.

Affirmed.

WHITFIELD, TERRELL, CHAPMAN, and THOMAS, JJ., concur.

BROWN, C. J., concurs specially.

BUFORD and ADAMS, JJ., dissent.

BROWN Chief Justice (concurring).

The general rule established by our decisions is that the party alleging that a deed or gift inter vivos was procured through the exercise of undue influence has the burden of proving that fact. But our decisions also very clearly recognize an exception to that general rule, to the effect that where the evidence plainly shows the existence of confidential or fiduciary relations between the donor and the donee, the burden of proof shifts, and it then becomes incumbent upon the party who is the beneficiary of and receives the deed or gift, to show that the transaction was entered into fairly, voluntarily and with full understanding of the facts. Rich v. Hallman, 106 Fla. 348, 143 So. 292; Peacock v. DuBois, 90 Fla. 162, 105 So. 321; Adams v. Saunders et al., 139 Fla. 730, 191 So. 312, 316. As was said in the last cited case:

'Thus the burden of proof as to the bona fides and fairness of a transaction of this nature does not shift until the party alleging its invalidity has first shown the existence of confidential or fiduciary relations, or that there had been brought to bear upon the donor a dominant and controlling influence in behalf of the donee.'

When I began the study of the case at bar, I was under the impression that this rule had also been applied by this court to wills, that is, to a case in which the validity of a will was attacked upon the ground that the will, or some material portion of it, was alleged to have been obtained by undue influence, and the evidence showed the existence of confidential relations between the testator and the beneficiary. But upon a study of our own cases, I have found no clear holding to that effect, and on reviewing the authorities and decisions of other jurisdictions I have become convinced that in most of such jurisdictions this rule does not apply to wills unless it clearly appears that the beneficiary not only occupied a confidential or fiduciary relation to the testator, but was also active in procuring the drafting or execution of the will. And there is yet some considerable division of judicial opinion upon the correctness of the rule as thus modified. See annotations in 28 L.R.A.,N.S., 271; 66 A.L.R. 228; 76 A.L.R. 373.

I think the true rule, and the one which is sustained by the greater weight of authority, is very well expressed by Mr. Redfearn in his work on Wills and Administrations of Estates in Florida, Section 52, pp. 64 and 65, as follows:

'In some states the mere existence of a confidential relation between the testator and the beneficiary raises the presumption that the will was procured through undue influence. The better rule is that the existence of undue influence is not presumed merely from confidential relations between the testator and the beneficiary. This is the rule to which the Florida courts incline, but the existence of confidential relations is a circumstance which may be considered on this issue. If it can be proved that a beneficiary who is charged with undue influence occupied a confidential relation towards the testator and was active in procuring the execution of the will in which he is a substantial beneficiary, a presumption of undue influence will arise and the burden of proof will be shifted to the propounder of the will.

'This presumption is one of fact and not of law. Consequently, this presumption may be rebutted by any evidence which shows that the testator acted freely and voluntarily in making his will and not under the coercion or the constraint of the person charged with the undue influence.

'If the testator occupied a confidential relation towards one or more of the beneficiaries in the will, and if undue influence is an issue, the mental and physical condition of the testator at the time the will was executed is of great consequence. Proof of a sound mind and body does not preclude the possibility of undue influence; nor does proof of a weak mind and feeble body alone establish undue influence; yet it is well known that a person in feeble health or with a weak mind is more susceptible to improper influences than one of robust health and strong mind.'

My study of our decisions leads me to the conclusion that no definite and clearcut commitment to this rule, as very well and fully stated by Mr. Redfearn, had been made by this court up to the time Mr. Redfearn's book was written, nor for that matter, up to the present time. On rehearing in the case of Newman v. Smith, 77 Fla. 667, 82 So. 236, and also in the original opinion cited by Mr. Redfearn in 77 Fla. 633, 82 So. 236, 246, the question of what constitutes undue influence and whether or not the evidence in that case showed undue influence was discussed at considerable length, but the question of the burden of proof on that issue, where confidential relations are shown, was not definitely ruled on, though it is remarked that 'undue influence must be proven when it appears that the testator was 'of sound mind."

I think the same observation might well apply to the cases of Hamilton v. Morgan, 93 Fla. 311, 112 So. 80; Gardiner v. Goertner, 110 Fla. 377, 149 So. 186; In re Starr's Estate, 125 Fla. 536, 537, 170 So. 620, and In re Gottschalk's Estate, 143 Fla. 371, 196 So. 844. In this last case, a presumption was held to have been raised by a set of circumstances somewhat unusual, shown by the evidence. In the case of Theus v. Theus, 119 Fla. 190, 161 So. 76, 78, it was held that a presumption of invalidity does not attach to a will merely because the sole beneficiary requested and directed the drawing of the will, although such circumstance might well excite the court to suspicious scrutiny. In that case Mr. Justice Ellis, writing the opinion of the court, observed that it had been pointed out, in the case of Gardiner v. Goertner, supra, that 'other cases hold that, where a will is prepared by one who benefits under it, a presumption arises that the will was procured by undue influence and that is especially so when the one drawing the will stands in a confidential relation to the testator.' Although the court in that case held that the burden was upon the appellant to show that the findings and order of the Probate Judge and the Circuit Court's decree affirming such order were erroneous, the question of the presumption of undue influence from confidential relations, and the burden of proof on the issue of undue influence, were not definitely ruled upon.

In the opinion of Mr. Justice Terrell in Rich v. Hallman, supra, which involved the validity of a gift inter vivos, and wherein it held that in such cases a presumption of undue influence arose from confidential relations, it was observed that [106 Fla. 348, 143 So. 293] 'the degree of proof necessary to invalidate a will is much greater than that required to set aside a gift inter vivos.' Citing Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754.

While the case of Marston v. Churchill, 137 Fla. 154, 187 So 762, does not deal directly with the question we are here discussing, the opinion of Mr. Justice Thomas in that case does discuss the question of undue influence, and it was held in that case that the right of persons to dispose of property by will cannot be defeated on the ground of undue influence unless that element is clearly apparent, and that a confidential relation...